[*] This Discussion took place at the Fifth Annual Conference for Mediators and Arbitrators presented by the Florida Dispute Resolution Center on August 23, 1996, in Orlando, Florida. Many thanks to Sharon Press, Director of the Florida Dispute Resolution Center, who was responsible for the casting of this discussion and who suggested various scenarios. Some of the scenarios used in the discussion are based on actual grievances filed with the Florida Mediator Qualifications Board.
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[3] See, e.g., Leonard L. Riskin, Understanding Mediators' Orientations, Strategies, and Techniques: A Grid for the Perplexed,1 HARV. NEGOTIATION L. REV. 7, 24 (1996) (presenting a four-quadrant grid describing the varieties of mediator behavior as facilitative-broad, facilitative-narrow, evaluative-broad, and evaluative-narrow). For a critical view of evaluative mediation, see Kimberlee K. Kovach & Lela P. Love, "Evaluative" Mediation Is an Oxymoron, 14 ALTERNATIVESTO HIGH COST LITIG. 21, 32 (1996) (criticizing evaluative mediation for perpetuating or creating an adversarial climate and being inconsistent with the primary objectives of mediation: to promote self-determination of parties, to help the parties examine their real interests, and to develop mutually acceptable solutions). The evaluative/facilitative terminology has already found its way into the legal practice literature and has been adopted by commentators offering advice as to how lawyers might represent clients in mediation. See, e.g.,JOHN W. COOLEY, NAT'L INST. FOR TRIAL ADVOCACY, MEDIATION ADVOCACY app. A-2 at 86-88 (1996) (recommending that lawyers and their clients decide whether they want an evaluative or facilitative mediator, or a combination of both, prior to the mediator selection process and describing the roles and functions that various types of mediators may assume to assist parties in resolving disputes).
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[6] Professor Moberly chaired the Standards Subcommittee of the Florida Supreme Court Committee on Mediation and Arbitration Rules. For further discussion of the Committee's work and related issues, see Robert B. Moberly, Ethical Standards for Court-Appointed Mediators and Florida's Mandatory Mediation Experiment, 21 FLA. ST. L. REV. 701 (1994).
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[7] See Robert B. Moberly, Mediator Gag Rules: Is It Ethical for Mediators to Evaluate or Advise?, 38 S. TEX. L. REV. (forthcoming 1997). Professor Moberly's article is based on an address delivered to a symposium sponsored by the South Texas Law Review on October 25, 1996, entitled "The Lawyers Duties and Responsibilities in Dispute Resolution."
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[8] The committee note to Florida Rule for Certified and Court Appointed Mediators 10.090 provides:

Mediators who are attorneys should note Florida Bar Committee on Professional Ethics, formal opinion 86-8 at 1239, which states that the lawyer-mediator should "explain the risks of proceeding without independent counsel and advise the parties to consult counsel during the course of the mediation and before signing any settlement agreement that he might prepare for them."